V.Girija, F/26 v. The State Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09.07.2018

CORAM:

THE HON'BLE DR. JUSTICE S.VIMALA AND THE HON'BLE MRS. JUSTICE S.RAMATHILAGAM H.C.P.No.378 of 2018 V.Girija ... Petitioner versus

1. The State of Tamil Nadu, Rep. by its Secretary to Government, Prohibition and Excise Department, Fort St. George, Chennai - 9.

2. The District Collector and District Magistrate, Cuddalore District ... Respondents Habeas Corpus Petition filed under Article 226 of Constitution of India. for the issuance of Writ of Habeas Corpus, calling for the entire records, relating to the petitioner's husband detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 17.01.2018 on the file of the second respondent herein made in proceedings Na.Ka.No.C3/D.O./05/2018 and quash the same as illegal and consequently direct the respondents herein to produce the petitioner's husband namely Vinoth Kumar, S/o.Shanmugam, aged 32 years before this Hon'ble High Court and set the petitioner's husband at liberty from detention, now the petitioner's husband detained at Central Prison at Cuddalore.

For Petitioner :

Mr.T.Meganathan For R1 and R2 :

Mr.R.Prathap Kumar Additional Public Prosecutor

ORDER

(DELIVERED BY DR. S.VIMALA, J.) The second respondent, District Collector and District Magistrate, Cuddalore, clamped an order of detention on 17.01.2018 as against Vinothkumar, S/o.Shanmugam, as the said authority arrived at the subjective satisfaction that the said

detenu is a 'Goonda' and he has to be detained under Section 3

(1) of Tamil Nadu Act 14 of 1982 with a view to preventing him from acting prejudicial to the interest of public health and public order.

2. Challenging the order of detention, the wife of the detenu has come forward with the present Habeas Corpus Petition.

3. Heard Mr.T.Meganathan, learned counsel appearing for the petitioner and Mr.R.Prathap Kumar, learned Addl. Public Prosecutor appearing for the respondents.

4. It is contended by the learned counsel for the petitioner that there is a delay in considering the representation and this has rendered the detention illegal. Learned Addl. Public Prosecutor appearing for the respondents submits that though there is a delay of 35 days, but the said delay in no way vitiates the order of detention. Though such a contention is advanced, however, no explanation has been adduced by the respondents explaining the delay.

5. In Rashid Kapadia v. Medha Gadgil, (2012 (11) SCC 745), the Supreme Court had occasion to consider the effect of delay in considering the representation and in that context held as under :- "13.It is well settled that the right of a person, who is preventively detained, to make a representation and have it considered by the authority concerned as expeditiously as possible, is a constitutional right under Article 22(5). Any unreasonable and unexplainable delay in considering the representation is held to be fatal to the continued detention of the detenu. The proposition is too well settled in a long line of decisions of this Court. We do not think it necessary to examine the authorities on this aspect, except to take note of a couple of judgments where the principle is discussed in detail. They are: Mohinuddin v. District Magistrate, Beed [(1987) 4 SCC 58 : 1987 SCC (Cri) 674] and Harshala Santosh Patil v. State of Maharashtra [(2006) 12 SCC 211 : (2007) 1 SCC (Cri) 680]."

6. In view of the above proposition, the delay in considering the representation submitted by the petitioner, which has not been explained properly, has vitiated the order of

detention. The delay is fatal to the order of detention and this has rendered the detention illegal.

7. On the above ground alone, the order of detention is quashed. The habeas corpus petition is allowed. The detenu, Vinothkumar, S/o.Shanmugam, is ordered to be set at liberty forthwith, unless his custody is otherwise required in any other case.

-s/d- Assistant Registrar(CS-IX) True Copy Sub-Assistant Registrar ogy To

1. Secretary to Government, Prohibition and Excise Department, Fort St. George, Chennai - 9.

2. The District Collector and District Magistrate, Cuddalore District.

3. The Superintendent, Central Prison, Cuddalore.

4. The Public Prosecutor High Court, Madras 104 H.C.P.No.378 of 2018 SP(30/07/2018)